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Archive for ‘Substantive Law: Judicial Decisions’

Charter Compliant: COVID Travel Restrictions

Written by Daniel Standing LL.B., Editor, First Reference Inc.

COVID-19 has caused much suffering and death worldwide since its discovery in late 2019. Part of Canada’s response has been tightening restrictions on those who enter Canada by air by enacting emergency orders under the federal Quarantine Act. These measures were the focus of a wide-ranging Canadian Charter of Rights and Freedoms (Charter) attack by several applicants in the Federal Court case of Spencer v Canada (Health), 2021 FC 621 (CanLII). With two limited exceptions, Chief Justice Paul Crampton rejected the claims that the emergency orders were unconstitutional. The . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Reasonableness of a Decision Absent Reasons

In 2016, Justice David Stratas of the Federal Court of Appeal took the unusual step of posting “A Plea for Doctrinal Coherence and Consistency” online, stating,

Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan…

Administrative law matters. Resting at its heart is the standard of review, the body of law that tells us when the judiciary can legitimately interfere with decision-making by the executive—a matter fundamental to democratic order and good governance, a matter where objectivity, consistency

. . . [more]
Posted in: Substantive Law: Judicial Decisions

Pandemic Pay Cuts Not Applicable to Dismissed Employee

Written by Lewis Waring, Paralegal, Student-at-law, Editor, First Reference

In Hunsley v Canadian Energy Services LP, 2020 ABQB 724 (CanLII) (“Hunsley”), the Alberta Court of Queen’s Bench (“ABQB”) found that a wrongfully dismissed employee was entitled to receive his regular pay and benefits during his notice period despite the reality that the employer had reduced compensation for employees during a pandemic pay cut. Although workers who stayed actively employed during the pandemic were subjected to the employer’s unilateral pay cut, this cut was recognized to be an act of constructive dismissal and thus did not factor into the employee’s . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Evolving the Law: The Tort of Internet Harassment

Nowadays, a person’s life can be turned upside down by a comment made on the internet. Just ask Harvey Weinstein. Despite the power of the internet, we are just beginning to regulate it. In Ontario, the laws regarding decorum on the internet are in their infancy. The law on internet harassment has not been codified. In a recent decision, 385277 Ontario Ltd. v Gold, 2021 ONSC 4717, Justice Myers advances our legal system when it comes to recognizing internet harassment.

In 385277 Ontario Ltd. v Gold, an injunction was sought by the plaintiffs. The plaintiffs wanted to . . . [more]

Posted in: Substantive Law: Judicial Decisions

Handling Vaccine Hesitancy in the Workplace

On Friday, right before Ontarians were entering the long weekend, the Chief Public Health Officer announced that Canada may be entering a 4th wave. The likelihood of a resurgence will largely depend on how many people are fully vaccinated. An estimated 89.7% of all new cases are occurring in eligible but unvaccinated people, even though the Prime Minister recently noted there are enough doses to vaccinate everyone in the country.

Some post-secondary institutions in Ontario are making vaccinations mandatory for all students and employees, with the province considering making vaccines mandatory for certain occupations. Half of all vaccinated Canadians indicate . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Indigenous Woman’s Human Rights Case Gets Second Wind

by Daniel Standing LL.B., Editor, First Reference Inc.

Systemic racism can easily fuel discriminatory conduct, but it is notoriously hard to prove. In Ledger v Alberta Health Services and Alberta Justice and Solicitor General, 2021 AHRC 95, the Human Rights Tribunal of Alberta decided that an Indigenous woman’s case was dismissed too soon and should have instead gone to a full hearing. The decision provides a helpful overview of the law on discrimination, the interplay between race and changing societal values, and the prime importance of investigating and appropriately responding to discrimination complaints.

Facts of the case

Eileen Ledger . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

A Specialized Lawyer Does Not Need to Be Certified

Lawyers are distinct from other professionals like medicine in that the license provided is inherently broad, and limited only by the restrictions the lawyer places upon themselves.

For example, the Model Code states at 3.1-1 that a competent lawyer “means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement…” Those knowledge, skills, and attributes can be defined or applied in many different ways, especially where a lawyer is working with other lawyers who have different or . . . [more]

Posted in: Practice of Law: Practice Management, Substantive Law: Judicial Decisions

Google Is Subject to PIPEDA in Canada

The Internet, it is proverbially thought, lives forever. That is, until jurisdictions around the world started to develop the “right to be forgotten.”

In 2017, a complaint was made to the Privacy Commissioner of Canada that Google violates the Personal Information Protection and Electronic Documents Act (PIPEDA), by displaying links to news articles with personal and sensitive information about him.

This wasn’t the first privacy complaint that the Commissioner faced about Google, which previously included Wifi data collection. The Commissioner has also investigated other businesses that index private information that is maintained or removed on Google, or businesses . . . [more]

Posted in: Substantive Law: Judicial Decisions

Cheesed Off Employee Loses Wrongful Dismissal Appeal

Written by Daniel Standing, LL.B., Editor, First Reference

Dismissal for cause is frequently characterized as capital punishment in the employment realm. As a drastic solution, one would presume that an employer would only terminate a worker’s employment for good reason and with a firm sense of an employee’s wrongful conduct. A recent decision of the Manitoba Court of Appeal, McCallum v Saputo, 2021 MBCA 62 (CanLII), indicates that an employer’s position is not necessarily compromised if it fails to investigate suspected wrongdoing before dismissing an employee. The case stands for the principle that the employer does not have a . . . [more]

Posted in: Case Comment, Substantive Law, Substantive Law: Judicial Decisions

Determining Judicial Ethical Conduct: Not So Straightforward? Part II


In the first of these two Slaw posts, I wrote about the two inquiries into Ontario Court of Justice (“OCJ”) judge Donald McLeod’s alleged misconduct. Here I discuss not only this OCJ judge who deliberately met with politicians in the context of an activist group he founded post-judicial appointment, but also a judge who acted as a messenger for a group to which he had belonged to someone in the university administration about an academic appointment; a judge whose husband had effectively engaged in cyberbullying against her; a judge who went to the assistance of a law school facing . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Bad Faith Abounds at Landlord Tenants Tribunal

Over 6 months after many landlords in Ontario claimed that some tenants were using the pandemic as an excuse to not pay rent, it’s becoming increasingly clear that many landlords themselves are using these circumstances to violate the Residential Tenancies Act, 2006.

The Landlord Tenant Board (LTB) has been described as “chaos,” as early as late 2020, and the circumstances since that time have not improved. The province’s Digital First Strategy was intended to save money and improve efficiencies, and probably works best in court proceedings where all the parties are represented.

At the LTB, most tenants are rarely represented, . . . [more]

Posted in: Justice Issues, Substantive Law: Judicial Decisions

Calculations of the Pandemic Limitations in Ontario

When the COVID-19 pandemic first hit Ontario, the provincial government made a special order on March 20, 2020 under s. 7.1(2) of the Emergency Management and Civil Protection Act, creating a suspension of limitations under O. Reg. 73/20,

Limitation periods

Period of time, steps in a proceeding

. . . [more]
Posted in: Substantive Law: Judicial Decisions